Petition for Probate and Letters Testamentary; Motion to Strike
Case Number
Case Type Decedent's Estate Hearing Date / Time Mon, 06/01/2026 - 08:30 Nature of Proceedings Petition for Probate and Letters Testamentary Tentative Ruling Probate Notes:
On January 15, 2026, Shannon E. Billet filed a Petition for Probate of Will and Letters Testamentary. The initial probate notes regarding the petition were posted, identifying several issues that needed to be corrected before the petition could proceed. Instead of correcting those defects, it appears Shannon E. Billet is attempting to withdraw that petition in favor of a Petition to Determine Succession to Primary Residence, which was filed on April 10, 2026, and labeled "amended".
There are multiple problems with the Petition to Determine Succession to Primary Residence. First, a mandatory allegation that must be made in order to allow the court to grant that petition is that "No proceeding for the administration of decedent's estate is being conducted or has been conducted in California." (Pet. to Det. Succ. To Prim. Res., at P.6.) The language on the DE-310 Judicial Council form derives directly from Probate Code sections 13150(a) & 13152(a)(5)(A). If a proceeding "is being or has been conducted", a personal representative's consent to a section 13150 petition is required, since section 13152(a)(5)(2) refers specifically to "commence[ment]" of administration proceedings, and proceedings "commence" when filed, not when granted.
Therefore, the Petition to Determine Succession cannot be properly pleaded because "a proceeding" to commence administration of the decedent's estate is currently being conducted.
The second problem with the Petition to Determine Succession to Primary Residence is that proper procedural process was not followed to amend the pleading, because 1) The amendment was not serially numbered as the First Amendment (CRC, Rule 3.1324(a)(1)), and 2) the amendment was filed 90 days from the date the original pleading was filed. A party may amend a pleading once as a matter of right, within the statutory time frame set by CCP section 472(a). Thereafter, the party must seek leave of court to amend a pleading by filing a motion that conforms with the format and procedural requirements of CRC, Rule 3.1324.
These civil rules apply to "all cases in the superior courts, including...probate cases..." (CRC, Rule 3.10), and apply to all "pleadings" in probate matters pursuant to the definition of a pleading in CRC, Rule 7.3 (""Pleading" means a contest, answer, petition, application, objection, response, statement of interest, report, or account filed in proceedings under the Probate Code."). While it is true that CCP section 472(a) allows an amended pleading to be filed upon a stipulation, the stipulation must be "by the part ies, " plural.
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This means that all parties with an interest in a case defined by CCP section 377.10 and 377.11 must join the stipulation in order for it to trigger the right to amend via stipulation in CCP section 472(a).
As a result of the procedural defects above, it is recommended the Court strike the Petition filed on April 10, 2026, pursuant to CCP section 436(b).
The following must be submitted: Supplement to the Petition. A supplement to the petition listing all known heirs must be provided, even if those heirs are deceased or are not named in decedent's will. (Pet. at P.8.) Paragraph 8 of the petition specifically requires listing even deceased heirs, and this Court requires heirs to the second degree. The Court has discretion to require service to these heirs pursuant to Probate Code section 1202.
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